Avinash G. Gharote, J. - (1.) Heard. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned Counsel for the parties.
(2.) By the present petition, a direction is claimed against the respondent no.4 and other respondents, to admit the petitioner in the BAMS Course with the respondent no.4 College. The basis for such a plea as submitted by Mr. C.B. Dharmadhikari, learned Counsel for the petitioner, is as under :- (A) The petitioner belongs to OBC category and caste validity certificate, has been issued to her by the Competent Authority. (B) The petitioner was desirous of taking admission in BAMS Course after completing her HSSC. (C) The eligibility criteria for Open category which according to the petitioner, was not applicable to her, is securing of at least 50% marks in the subjects of Physics + Chemistry + Biology ("PCB" for short hereinafter) in the HSSC examination, i.e. minimum of 150 marks out of 300. (D) The eligibility criteria for OBC candidates, which the petitioner claims to be applicable to her, is securing at least 40% marks in the PCB subjects in the HSSC examination, i.e. minimum 120 marks out of 300. (E) The petitioner scored 142 marks out of 300 in the subjects of PCB in her HSSC examination and therefore as per the eligibility criteria for OBC candidates, became eligible. She appeared in NEET UG -2020 examination, in which she secured 296 marks. (F) The petitioner being desirous of taking admission in the respondent no.4 College in the BAMS Course applied for the same. (G) In the first institutional round of counseling scheduled on 17/1/2021 the petitioner was not selected, in view of her NEET score, in the reserved category. (H) After the first institutional round, all seats from reserved category were filled, however, some seats from Open category were vacant. (I) The petitioner was selected in the second institutional round from Open category on the basis of her NEET score and was asked to report for taking admission along with all documents and fees on 20/3/2021, on which date the petitioner was duly present, but was denied admission because of objection taken by the observers. (J) The objection taken was that the petitioner had secured 142 marks in PCB , whereas, she ought to have secured a minimum of 150 marks in the said subjects, in her HSSC examination, and therefore, was not eligible.
(3.) Mr. C.B. Dharmadhikari, learned Counsel for the petitioner submits, that at the stage of grant of admission, eligibility was not relevant, as the petitioner was already eligible, on account of her belonging to the OBC category, having secured the requisite marks in the said category and it was only the NEET score, which was relevant at the time of granting the admission in the Open category. It is contended that since the NEET score of the petitioner was 296 marks, and the score of the last person, who had secured admission in Open category was 285, the petitioner was clearly entitled for grant of admission. It is contended that the percentage of marks, in the HSSC examination, was merely a qualifying/eligibility criteria which had no role to play at a later stage, when admission was to be granted and seats were to be allocated, which was to be done solely on the basis of merit as per the NEET score. Learned Counsel submits that the denial of the admission to the petitioner in the Open category was therefore illegal. Learned Counsel, places reliance upon the information brochure issued by the NEET UG-2020, detailing the procedure for admission to Health Science Courses at Government/Corporation Colleges for Maharashtra State quota and unaided private/minority colleges: NEET UG-2020 ("Admission Procedure" for short hereinafter) and specifically on Clauses 1.1, 1.6 (e), 4.6.1 and 10.15. He also relies upon the judgment of the learned Division Bench of the High Court of Uttarakhand in Writ Petition (S/B) No.139/2019 [Rajneesh Dwivedi Vs. State of Uttarakhand and others] decided on 24/7/2020 to contend that migration of candidates from reserved category to occupy posts in the General category, is permissible. Learned Counsel also places reliance upon Asha Vs. Pt. B.D. Sharma University of Health Sciences and others , 2012 7 SCC 389 in support of his submissions.;